Supreme Court’s Janus decision leads AAUP union officials to quickly settle civil rights lawsuit filed by UConn School of Business accounting professor

Storrs, CT (April 24, 2019) – National Right to Work Legal Defense Foundation staff attorneys have secured a victory for a University of Connecticut School of Business professor who filed a lawsuit in January seeking the return of forced union fees seized from him by union officials in violation of his First Amendment rights.

Under the settlement, the American Association of University Professors union (AAUP) has returned $5,251.48 in unlawfully obtained union fees to accounting professor Steven Utke. Union officials were forced to settle because of the Supreme Court’s decision in Janus v. AFSCME, a 2018 Foundation-won case that found that any mandatory union payments taken from public employees without their consent violate their First Amendment constitutional rights.

Since Utke was hired by the university in 2015, AAUP, which has monopoly bargaining powers over all professors, including those opposed to union representation, deducted fees from Utke’s paycheck. Utke was not a member of the AAUP, and further never consented to have the money deducted from his paycheck.

Eventually Utke, with free legal representation from National Right to Work Foundation staff attorneys, filed a federal lawsuit in the United States District Court for Connecticut on January 14, 2019, on the grounds that AAUP officials had infringed his First Amendment rights. The suit cited the Janus v. AFSCME decision, which declared that forced fees for government employees constitute coerced speech and are thus unconstitutional.

Janus v. AFSCME, which was decided in June of 2018, overturned the wrongly-decided 1977 decision in Abood v. Detroit Board of Education that public-sector workers could be compelled as a condition of employment to pay union fees for bargaining-related purposes. In Janus, the Court ruled that it is unconstitutional to require government workers to pay any union dues or fees as a condition of employment, because bargaining with the government is political. Additionally, the Court clarified that no union dues or fees can be taken from workers without their affirmative consent and knowing waiver of their First Amendment right not to financially support a labor union.

Rather than face Foundation staff attorneys in court, AAUP backed down and settled the case earlier this month. Now, as stipulated by the terms of the settlement, AAUP officials have returned to Utke almost four years of union fees seized in violation of his rights plus interest. They further pledged not to collect any dues or fees from Utke’s future wages unless he affirmatively chooses to become a member of AAUP and authorizes such deductions.

“Steven Utke joins the growing ranks of workers across the country who, citing the Janus precedent, are receiving refunds for the forced union fees seized from them by greedy union officials in violation of the First Amendment,” commented National Right to Work Foundation President Mark Mix. “Unfortunately, tens of thousands of other public employees are still waiting for the refunds they should get, with Foundation staff attorneys continuing to litigate numerous such cases.”

Foundation staff attorneys secured the first-in-the-nation refund of forced union dues after Janus for Oregon Department of Fish and Wildlife employee Debora Nearman, and subsequently have won similar refunds for public employees elsewhere.

The Foundation has created a special website, MyJanusRights.org, to assist public employees in exercising their rights under Janus, which was successfully argued by National Right to Work Foundation staff attorney William Messenger.

UFCW boss misinformed worker about his rights by claiming union membership was mandatory. Others retaliated with slurs and threats when worker defied strike

Quincy, MA (April 18, 2019) – A Massachusetts Stop & Shop employee filed federal unfair labor practice charges against United Food and Commercial Workers (UFCW) Local 1459 alleging that a top union official blatantly misinformed him by telling him that he could not resign his union membership and return to work during a union-ordered strike or he would be fired. The charge was filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

The charging employee has worked at Stop & Shop Supermarket Company since 2017. When he started the job, he became a member of UFCW Local 1459 as union officials led him to believe that union membership was a condition of employment.

Earlier in April, UFCW union officials ordered over 30,000 Shop & Stop grocery employees on strike in Massachusetts, Connecticut, and Rhode Island. The charging employee asked UFCW Local 1459 about his rights to continue working despite the union-ordered strike. In response, a top union official told him in writing that Stop & Shop is a “closed shop” and that he would lose his job if he resigned union membership and returned to work.

That threat contradicts federal law, which protects a worker’s right to resign his or her union membership at any time. Resignation protects a worker who wants to return to work despite a union strike. As a nonmember, he or she cannot legally be subjected to punitive union strike fines.

Additionally, when there is no union monopoly bargaining agreement in effect, as is the case for workplaces impacted by the UFCW’s strike against Stop & Shop, workers who resign from the union can immediately revoke any authorization for payment of union dues.

After being misled, the charging employee learned his rights and decided to return to work. His charges allege that since his return, he has been subjected to slurs based on sexual orientation, threats of violence, and other similar harassment by, or instigated by, UFCW Local 1459 union officials.

To combat the threats and violations of his rights, he sought free legal aid from Foundation staff attorneys. His charges state that the UFCW Local 1459 union official’s claim that he would be fired if he resigned union membership to return to work was “a blatant falsehood and misrepresentation of the law,” because employees have the right at any time to revoke their union memberships and resume work during a strike to support themselves and their families.

Moreover, under federal law unions must give workers clear notice of their right to refrain from union membership and pay reduced nonmember forced fees. The employee’s charges allege that union officials have never given him such notice. His charges also state that the union officials’ harassment in retaliation for his choice to return to work violates the union’s duty of fair representation.

“This worker is refusing to let union bosses bully him into submission through outright lies and threats simply because he has decided that continuing to work is in his best interest,” said Mark Mix, president of the National Right to Work Foundation. “As is unfortunately common when union bosses instigate a work stoppage, union officials are again violating the rights of the workers they claim to ‘represent.’”

“Foundation staff attorneys stand ready to assist other workers who run into union misinformation and threats when they choose to exercise their right to return to work,” added Mix.

The National Right to Work Foundation released a special legal notice informing Stop & Shop employees of their rights during the union-ordered strike. The notice can be found at: https://www.nrtw.org/special-notice-for-new-england-based-employees-of-shop-stop/.

Minnesota home-based personal care providers argue being forced under SEIU union monopoly ‘representation’ violates their freedom to associate

Washington, D.C. (April 17, 2019) – Today, National Right to Work Legal Defense Foundation staff attorneys filed the final brief in Bierman v. Walz asking the Supreme Court to hear a group of Minnesota home care providers’ challenge to forced union affiliation.

The home care providers are challenging a Minnesota state law used to force tens of thousands of home care providers under union monopoly “representation.” The providers, who work at home caring for disabled family members as part of a state-run Medicaid program, oppose union affiliation.

The case’s lead plaintiff, Teri Bierman, filed the suit with seven other home care providers to challenge a 2013 Minnesota state law used by the Service Employees International Union (SEIU) Healthcare Minnesota to force home care providers to associate with it as a condition of providing care under the state Medicaid program. Bierman v. Walz asks the Supreme Court to declare unconstitutional under the First Amendment’s free association guarantee the unions’ monopoly bargaining privileges, by which a union forces its representation on individuals receiving state funds who do not consent to the representation.

Mark Mix, president of the National Right to Work Foundation, issued the following statement about the case:

“These home care providers are bravely challenging an unconstitutional scheme that compels them to associate with a union to receive state funds to care for their own children in their own homes. We hope the Supreme Court takes this opportunity to apply the First Amendment’s protection of freedom of association to Big Labor’s unparalleled monopoly bargaining ‘representation’ privileges that force individuals to submit to union bosses’ control.”

Background Information

Teri Bierman and the other home care providers provide critical care to their family members who receive state assistance to help pay for their care. Bierman provides care at home for her daughter, who suffers from cerebral palsy and requires care throughout the day. The other plaintiffs in the case care for children diagnosed with severe autism, epilepsy, Rubenstein-Taybi syndrome, or other significant disabilities. Like the other plaintiffs, Bierman receives aid from a Minnesota Medicaid program (which provides funds to families to care for disabled relatives).

By asking the Court to declare monopoly bargaining a violation of the First Amendment, Foundation staff attorneys seek to build off two recent Foundation-won Supreme Court decisions. In the 2014 Harris v. Quinn decision, the Court applied exacting First Amendment scrutiny to rule that providers like the Bierman plaintiffs cannot be required to pay union fees.

Next, in the June 2018 Janus v. AFSCME decision, the Court declared that forced union fees for all public sector employees violate the First Amendment and opened the door to further cases seeking to uphold workers’ rights to freedom of speech and freedom of association. In his opinion for the majority, Justice Samuel Alito wrote for the Court that “designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.”

Both Harris and Janus were argued by National Right to Work Foundation staff attorney William Messenger, who is also the lead attorney in Bierman v. Walz. Bierman now asks the Supreme Court, for the first time, to apply the same First Amendment standard to forced association as it has already applied to forced subsidies of union speech.

Union officials leveraging so-called “merger doctrine” to block workers from exercising right to hold decertification vote to remove minority union

Coventry, RI (April 10, 2019) – With free legal aid from National Right to Work Foundation staff attorneys, a Rhode Island bus driver has petitioned the National Labor Relations Board (NLRB) to allow a vote to decertify his local union. The filing argues the Labor Board’s “merger doctrine” being applied to block the vote is contrary to the National Labor Relations Act (NLRA).

Bradford Mayer, who works for school bus company First Student, Inc., circulated a decertification petition at his facility to remove Teamsters Local 251. He collected signatures from more than 30 percent of his colleagues at his workplace, as required to trigger an NLRB-supervised vote. However, Teamsters union officials moved to block the election on the grounds that Mayer and his colleagues were actually “merged” into a nationwide bargaining unit without their knowledge.

As his response to the NLRB notes, Mayer and his coworkers were unionized in a standalone local bargaining unit which has its own union contract. Thus they should be able to exercise their rights under the NLRA to remove the union. Instead, union officials take the position that they made a backroom deal with First Student, Inc. to “merge” the employees into a massive nationwide bargaining unit without their consent, despite the monopoly bargaining agreement not even referencing such a merger.

The “merger” effectively prevents any employee from organizing a decertification vote to reject representation by the union, which requires a worker to first obtain signatures from at least 30 percent of workers in the bargaining unit to hold a vote. Unlike paid union organizers, full time employees must collect signatures on their own time and are explicitly forbidden from receiving any meaningful assistance from management. Consequently, it is essentially impossible for workers to garner the necessary support at dozens of worksites spread around the country.

Mayer’s “Response to the Order to Show Cause” makes the point that workers have a clear legal right under the NLRA to hold a decertification vote in their workplace, and no agreement between company and union officials can waive that statutory right, which the secret merger agreement effectively does. The filing urges the NLRB to revisit the rules allowing union officials to impose such undemocratic “mergers” on workers as a means of creating decertification-proof bargaining units and promptly schedule a decertification vote for Mayer and his Rhode Island colleagues.

Various unions across the country have attempted to impose similar “mergers” before, relying on the NLRB-created “merger doctrine” as justification. Mayer’s petition calls on the NLRB to reject this so-called “merger doctrine,” because it has no basis in the NLRA and violates the act’s intended purpose of protecting employee free choice.

“Mr. Mayer and his colleagues should be allowed to decide freely whether they want to be represented by Teamsters Local 521,” says Mark Mix, President of the National Right to Work Foundation. “Union bosses have repeatedly used this so-called ‘merger doctrine’ to block workers, whom they claim to represent, from exercising their legal rights, so it is clearly time for the NLRB to reconsider this baseless rule.”

“For years the NLRB has created a web of bureaucratically created ‘rules’ not found in the National Labor Relations Act that block workers from removing unwanted unions from their workplace, and it is past time for this NLRB to move forward and stop the various games union bosses play to trap workers in unions opposed by a majority of employees,” Mix added.

United Autoworkers union and company settle case brought by workers challenging union dues and fees taken without workers’ authorization

Detroit, MI (April 8, 2019) – Unfair labor practice charges brought by National Right to Work Legal Defense Foundation staff attorneys for two Michigan medical emergency transportation workers against their employer and United Autoworkers (UAW) Local 708 have ended in settlements.

The settlements return to 170 workers more than $26,000 in union dues that were deducted from their paychecks without their authorization in violation of the National Labor Relations Act (NLRA), which protects employees’ right to refrain from union activities, and Michigan’s popular Right to Work law, which ended any requirement that workers must pay union dues or fees as a condition of employment.

Skyler Korinek and Donald McCarty both work for STAT Emergency Medical Services. Neither Korinek nor McCarty had ever given STAT authorization to deduct union dues or fees from their paychecks for UAW Local 708. Nevertheless, since they were hired union officials have demanded and accepted union dues that STAT automatically withdrew from the workers’ paychecks.

Both Korinek and McCarty sent a letter to STAT notifying it that deducting union dues or fees from their paychecks without authorization was illegal. The workers’ letters requested copies of any dues check-off authorization and revoked any authorization if it existed. However, STAT ignored their requests and continued to seize union dues against their wishes, and union officials continued to accept those dues.

The workers sought free legal aid from National Right to Work Foundation staff attorneys, who assisted them in filing unfair labor practice charges at the National Labor Relations Board (NLRB). Rather than face Foundation staff attorneys in an NLRB hearing, union officials and STAT settled the cases.

UAW Local 708 officials will refund all forced union dues or fees seized from any STAT employee without their authorization since December 27, 2017, an amount that totals more than $26,000. Additionally, STAT will post notices informing employees that the company will not provide unlawful support to UAW Local 708 by deducting union dues without an employee’s authorization. Union officials will also post notices stating that UAW Local 708 will not accept any union dues deducted without an employee’s authorization.

In addition to the now-settled NLRB charges, Foundation staff attorneys helped Korinek and McCarty file a federal class action complaint challenging the seizure of forced union dues as a violation of Michigan’s Right to Work law. That case is still ongoing.

“These workers bravely challenged egregious attempts to satiate union bosses’ greed with a cut of their hard-earned paychecks,” said National Right to Work Foundation President Mark Mix. “Despite the many existing protections, including Michigan’s Right to Work law, Michigan union bosses will disrespect the rights of the workers they claim to ‘represent’ to keep Big Labor’s forced-dues coffers full. Independent-minded workers must keep fighting against coercion, and Foundation staff attorneys will continue to provide free legal assistance to any employee facing compulsory unionism’s abuses.”

Since Right to Work legislation was signed into state law in December 2012, Foundation staff attorneys have litigated more than 100 cases in Michigan combating compulsory unionism.

National Right to Work Foundation asks National Mediation Board to eliminate confusing ‘straw man’ decertification rules for airline and railroad workers

Washington, D.C. (April 1, 2019) – The National Right to Work Legal Defense Foundation has submitted comments to the National Mediation Board (NMB) supporting the agency’s proposed simplification of the rules enabling workers in the airline and railway industries to vote to remove a labor union that lacks the support of a majority of workers.

The NMB, which administers the Railway Labor Act (RLA), is currently considering rulemaking to modernize and update the rules for workers seeking to hold a vote to strip union officials of their monopoly bargaining powers. The process is particularly important since under federal law RLA unions can force workers to pay union dues or fees as a condition of employment, even where state Right to Work laws protect other employees from forced union dues.

Longstanding legal precedent unanimously upholds that the RLA allows workers to choose their representative or no representative at all. However, NMB rules, in particular the current “straw man” requirement, make exercising this right inordinately complex.

The confusing rule forces an individual employee to run as a “straw man” union to replace the incumbent union as the monopoly representative. Once elected by a majority of the workers, the new “straw man” representative may then disclaim collective representation, but is not legally required to do so.

The Foundation’s comments to the NMB explain that the current “confusing and obfuscatory process” undermines both the letter and spirit of the RLA:

“The proposed rules are long overdue. Employee free choice is the RLA’s most significant policy, and the proposed rules are needed to ensure that all employees have an equal and fair choice regarding union representation. The Board has statutory authority to adopt the proposed rules, and should do so as soon as possible.”

National Right to Work Foundation President Mark Mix also commented on the long overdue reform:

“This proposed change is a commonsense reform to the current process which only makes sense if the goal is to confuse workers about their rights to remove an unwanted union. Ultimately the Railway Labor Act has many fundamental problems that require legislative action, not the least of which is that it grants union bosses the power to have workers fired for nonpayment of union dues or fees even in states with Right to Work laws. However, while we wait action from Congress to fix those greater injustices, adopting this basic change within the confines of the flawed RLA is well worth doing.”

In addition to submitting the formal comments, veteran Foundation staff attorney Glenn M. Taubman testified at the NMB hearing on March 28 in favor of the proposed rule change.

Janus v. AFSCME case continues after union officials refuse to return forced fees ruled unconstitutional in landmark decision

Chicago, IL (March 27, 2019) – Attorneys for Mark Janus, plaintiff in the landmark U.S. Supreme Court case Janus v. AFSCME, have asked a federal appeals court to order a refund union fees he was forced to pay while he worked for Illinois state government.

Janus worked for Illinois state government as a child support specialist from 2007 to 2018. Although he was not a union member, Janus was forced to pay thousands of dollars in “agency fees” to AFSCME, the government union at his workplace. With the help of attorneys from the National Right to Work Legal Defense Foundation and the Liberty Justice Center, Janus challenged the practice of mandatory union fees in federal court, and won.

On June 27, 2018, the U.S. Supreme Court ruled that government workers cannot be required to pay union fees as a condition of working in public service, finding that mandatory union “agency fees” are unconstitutional. The Supreme Court sent the case back to the District Court to determine, among other things, whether Janus is entitled to the approximately $3,000 in fees he was forced to pay since March 23, 2013.

“The Supreme Court held that it is unconstitutional to take union fees from public employees without their consent,” said Jeffrey Schwab, senior attorney at Liberty Justice Center. “Mark, and other public employees like him, were harmed when unions unconstitutionally took their money. They are entitled to have that money returned.”

In addition to striking down the practice of mandatory union fees, the Court ruled that the First Amendment is violated when any union dues or fees are taken from public employees without their affirmative consent and knowing waiver of their First Amendment right not to financially support a labor union.

“As this case shows, even after a clear ruling by the Supreme Court that forced union dues violate the First Amendment, union bosses continue to use every trick in the book to keep the funds they seized in violation of the rights of the very workers they claim to represent,” said Mark Mix, president of the National Right to Work Foundation. “It has been clear ever since the 2012 Knox v. SEIU decision that the Supreme Court was poised to rule that mandatory union payments violate the constitutional rights of public employees like Mark Janus, and it would be a massive injustice to deny the victims of that scheme the refunds to which the Supreme Court’s ruling makes it clear they are entitled.”

Janus’s appeal comes after a district court judge ruled earlier this month that union officials are not required to refund forced fees seized from nonmember workers before the Janus decision.

The Foundation has created a special website, MyJanusRights.org, to assist public employees in exercising their rights under Janus, which was successfully argued by National Right to Work Foundation staff attorney William Messenger.

Testimony: Current labor law promotes forced unionism and is ‘antithetical to American values of free speech and free association’

Washington, D.C. (March 26, 2019) – A National Right to Work Legal Defense Foundation staff attorney will testify at a U.S. House of Representatives committee hearing today, urging reform of current labor law that hinders American workers from exercising their rights under the U.S. Constitution and the National Labor Relations Act (NLRA).

Veteran Foundation staff attorney Glenn M. Taubman, who has represented hundreds of workers in cases before the NLRB and in federal court, will speak to the House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at its hearing on “The Need for Labor Law Reform.”

Taubman points out that, under current labor law, millions of private sector workers are forced to accept representation from a labor union, a private organization, whether or not they agree with the union and want its representation. Additionally, many workers are forced to subsidize a union under threat of losing their jobs.

In his statement, Taubman brings up several problems with current labor law that violate workers’ rights. He points out that “current law makes it easier for employees to form and join a union than it is for those same employees to decertify the union,” describing the plethora of red tape designed to block employees from removing a union the representation of which they no longer want.

He argues that forced dues and monopoly bargaining, also known as “exclusive representation,” violate workers’ rights to free speech and free association by forcing them to be represented by and pay fees to a private organization. Even in states with Right to Work legislation, which protects employees’ right to choose whether or not to subsidize a union, union officials impose obstacles to prevent employees from changing their minds and stop paying union dues.

Despite the Foundation-won U.S. Supreme Court Beck decision that provides some protection for workers against being charged for political and certain other union expenditures, union officials have continued to collect forced dues for political activity. Taubman provided free legal aid to nurse Jeanette Geary in her landmark case, in which the NLRB ruled earlier this month (nine years after Geary first filed her case) that union officials can never charge nonmembers for lobbying expenses.

Additionally, Taubman urges reform of the standards for financial transparency as to how union dues are spent, citing recent examples of corruption and abuse of union funds. He also suggests the passage of several pieces of legislation to safeguard workers from compulsory unionism’s abuses, including the National Right to Work Act, which would give individual workers the freedom to decide whether or not to fund union officials’ activities.

“Changes to current labor law are long overdue, but the House Committee majority’s push to make it easier for workers to be forced into union ranks would move the law in the wrong direction,” commented Mark Mix, president of the National Right to Work Foundation. “No American worker should be forced to surrender their workplace voice to a private organization, let alone be compelled to give chunks of their paychecks to union bosses for their unwanted so-called representation.”

“Reforms to federal labor laws are certainly long overdue, but what is needed is a reorientation towards voluntary unionism,” added Mix. “For inspiration, Congress should familiarize themselves with the voluntary principles promoted by AFL-CIO founder Samuel Gompers, who observed that compulsory systems are a menace to workers’ rights, welfare, and liberty.”